On February 25, 2015, the Bureau of Indian Affairs of the United States Department of the Interior issued revised guidelines involving the placement of Indian children into foster care or the termination of parental rights so that the child could be placed for adoption.
Those guidelines are to supercede those that had been in effect since 1979. The purpose of the Indian Child Welfare Act as adopted by Congress in 1978 was to prevent the removal of children from Indian reservations when there had been suspected or reported abuse and neglect. Children who were removed were often placed with families who did not live on the reservation, or with families who were non-Indian. After the adoption of the ICWA, the Bureau of Indian Affairs with in-put from many tribes, groups, and other organizations developed guidelines that state courts could apply when dealing with such cases. One exception to many of the guidelines involved a voluntary placement for adoption.
After the Supreme Court of the United States decision in the case of Adoptive Couple v. Baby Girl, 133 S. Ct. 1521 (2013), which limited the reach of ICWA and which appeared to limit a tribe’s ability to assert rights over a child who had never been registered with a tribe, lived on a reservation, and/or whose parents had never done so, a push was made by a number of the Indian tribes to have the guidelines revised.
The guidelines that have been published, and which are only guidelines and are neither statutory law nor federal regulations, are problematic at best. While they attempt to clarify certain issues, the guidelines suggest certain procedures, notices, and standards that seem to be far beyond that which is authorized under the Indian Child Welfare Act. These guidelines were issued without a draft having been submitted for public comment, and since they are guidelines only, it is likely that many courts will reject them. Of greatest concern is that the guidelines now say that the best interest of the child as well as prior bonding and attachment circumstances are irrelevant since the most important thing is the best interest of the tribe. For those of us involved in family formation and in protecting children, we have very real concerns about this approach since it appears to violate the constitutional rights of privacy and due process of parents and children, and to classify children as mere “possessions” as opposed to human beings with rights of their own.
The American Academy of Adoption Attorneys has responded to these guidelines in a press release which can be read by clicking on the following link:
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